1976 Copyright Act Considered and Rejected Orphan Works Legislation

When congressmen were writing the 1976 Copyright Act, they considered and rejected Orphan Works legislation for the same reasons the IPA has opposed it now. They acknowledged that there was an “orphan works problem,” but concluded that it was outweighed by the need for copyright protection for authors. Here’s how they put it then:

“A point that has concerned some educational groups arose from the possibility that... a life-plus-50 year [copyright] term would tie up a substantial body of material that is probably of no commercial interest but that would be more readily available for scholarly use if free of copyright restrictions...

“It is true that today’s ephemera represent tomorrow’s social history, and that works of scholarly value, which are now falling into the public domain after 29 years [the term of copyright prior to 1978], would be protected much longer under the [1976] bill. Balanced against this are the burdens and expenses of renewals, the near impossibility of distinguishing between types of works in fixing a statutory term, and the extremely strong case in favor of a life- plus-50 system.

“Moreover, it is important to realize that the [1976] bill would not restrain scholars from using any work as source material or from making “fair use” of it; the restrictions would extend only to the unauthorized reproduction or distribution of copies of the work, its public performance, or some other use that would actually infringe the copyright owner’s exclusive rights.

“The advantages of a basic term of copyright enduring for the life of the author and for 50 years after the author’s death outweigh any possible disadvantages.” SOURCE: H.R. Rep. No. 94-1476, at 136 (1976) (emphasis added)

The current Copyright Office has acknowledged this reasoning on pages 43-44 of the Orphan Works Report. But they’ve portrayed it as a lingering problem that needs to be fixed. They say the 1976 Act “locks up” “orphan” material needed by scholars. But as the quotes above show, that’s not true.

We think that Congress had it right in 1976. They concluded that out of hundreds of millions of copyrighted images, there was no way to draft an omnibus measure to distinguish between active and lapsed copyrights. They chose to err on the side of protecting private property. The new amendment would err on the side of confiscating private property “for the public good.”

The reasoning resembles last year’s Supreme Court decision giving cities the right to take your land and give it to commercial developers. It reflects a switch in thinking at the Copyright Office and reveals the influence of the Free Culture movement, which has been campaigning for years to have copyright declared an obsolete concept.

If the current Copyright law needs fixing, it’s the work-for-hire clause that should be fixed. You might mention that in the letters you write to Congress.

— Brad Holland for the Board of the Illustrators' Partnership of America

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